SEX DISCRIMINATION IN THE SAN JOSE AREA
Do you work in the San Jose area and believe that you have been a victim of sex discrimination?

Sexual harassment in the San Jose area and throughout California is not only morally wrong, it is also against the law. The California Fair Employment and Housing Act (FEHA) and the United States Federal law in Title VII of the Civil Rights Act (Title VII) prohibit discrimination and harassment based on the sex of an employee.

Distinction Between Sexual Harassment and Gender or Sex Discrimination

The California Supreme Court summarized the distinction between harassment and discrimination in a 2008 case as follows:

"the Legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance, and business or personnel management decisions – which might later be considered discriminatory – as inherently necessary to performance of a supervisor’s job…."

"Harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job…."

"Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties."

Examples of Sexual Harassment

Sexual harassment covers considerably more ground than a supervisor or employer threatening to fire an employee if he or she refuses sexual advances. Although every case has a unique set of surrounding circumstances, courts have held that the following behavior, when it is sufficiently pervasive (repeated) or severe, can constitute illegal sexual harassment:

• Offensive sexual comments, including repeated sexual innuendo, slurs, crude remarks, and obscene stories or jokes.

• Sexual propositions, insults, and threats.

• Sexually oriented demeaning name calling.

• Persistent unwanted sexual or romantic proposals or attention.

• Leering, staring, whistling, or other sexually suggestive sounds or gestures.

• Displaying pornographic pictures, calendars, cartoons, websites, or other sexually explicit material in the workplace.

• Coerced or unwelcome touching, pinching, kissing, stroking, massaging, squeezing, fondling, or spanking.

• Explicit or implicit pressure for sexual favors.

• Coerced sexual intercourse that is demanded as a condition of employment or academic standing.

Examples of Gender or Sex Discrimination

Gender or sex discrimination refers to discrimination by management in personnel decisions based on an employee’s sex. The following is a situational checklist to guide you in determining what types of workplace decisions constitute actionable gender discrimination. However as with sexual harassment cases, every gender discrimination case is unique and should be analyzed based on its own distinctive set of facts.

• If an employee is a woman and she is demoted or suffers other adverse employment action because her employer thinks are not “lady-like,” she is likely to have an actionable claim for gender discrimination.

• If an employee is fired because she is pregnant, she almost certainly has a case for unlawful discrimination based on her sex.

• If an employee is discriminated against and treated differently at work because of his or her gender, an employee might have a case for gender discrimination depending on the facts of the case.

• If an employee has small children and is treated differently at work than coworkers of the opposite sex with small children, and such treatment is adversely affecting his or her employment, an employee might have a case for discrimination on the basis of his or her sex.

Discrimination Based on Sex, Pregnancy, or Potential Pregnancy

Discrimination based on pregnancy, childbirth, or related medical conditions, is prohibited by both FEHA and Title VII.

FEHA, at California Government Code, Section 12945 (b) (2) requires that if your employer has a policy or practice that requires that temporarily disabled employees be transferred to less strenuous or hazardous positions while they are disabled, then the employer may not refuse to transfer you while you are pregnant, if you ask to be transferred according to this practice.

Also, according to guidelines published by the FEHA, it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant.

So-called “maternal profiling” in which employers discriminate against women who have children or will have children in the future violates both FEHA and Title VII.

Please do not hesitate to give us a call at 650-857-1600 or email us at brodericklaw@brodericklaw.com for a free consultation on how best to approach your sex discrimination problems with employers. At the Broderick Law Firm we are here to help you stop wrongful sexual harassment in the workplace.

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